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Abstract

Because of the unique character of Native Nations, these communities are more likely to be impacted by climate change. First, because Native Nations are often tied to specific areas of land, such as reservations, it is impossible for Natives to leave these areas to either escape the effects of climate change or perhaps to follow migratory species moving to new ranges without abandoning their land. Furthermore, as species shift their ranges to follow their preferred climates, such shifts may threaten Native cultures, as Natives may no longer be able to access these species. Alaskan Natives may be particularly hard hit by shifts in the ranges of species, such as caribou, as the Alaska Native Claims Settlement Act of 1971 extinguished Alaskan Natives’ claims to aboriginal title and hunting and fishing rights. Alaskan Natives will correspondingly not be able to argue for movement beyond existing boundaries, as they have no claim to aboriginal territories and rights.
The purpose of this article is not to assert that Native Nations should succeed on claims under the federal common law of public nuisance stemming from injuries sustained as a result of climate change. Rather, this article suggests that the parens patriae standing doctrine should apply to claims based on federal public nuisance like the claim brought by Kivalina. Accordingly, when considering these types of claims brought by Native Nations, courts must apply the parens patriae standing doctrine in considering whether tribes have standing to bring such claims. To support this conclusion, the article first examines how past courts have applied the parens patriae standing doctrine, focusing on the United States Supreme Court’s decisions in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (Snapp) and Massachusetts v. EPA (Massachusetts). Next, the article will consider the application of “traditional” Article III analysis, as described by the Court in Lujan v. Defenders of Wildlife (Lujan), to claims such as the one brought by Kivalina. The article then discusses why, given the foregoing, the parens patriae standing doctrine is applicable to Native Nations, such as Kivalina. Finally, the article will briefly conclude with why the application of the doctrine of parens patriae to claims similar to the one brought by Kivalina has potentially broader implications for both the fields of federal Indian law and environmental law.